The basis of Chinese state-party constitutionalism requires a reconception of an understanding of constitution - to include both the document constituting the state and that constituting the Party as equivalent components that together form the national constitution as understood in the West. It is also based on a different understanding of the character of the Communist Party - not as a political party or as a private actor but as an integral part of the institutional structure of government, and more importantly, as the holder of political citizenship. These insights produce substantial consequences for the ways in which Chinese constitutionalism are understood and evaluated under global constitutionalist standards, which are discussed in the last section of the paper. These include the reflection of the party-state construct (1) in a division of the character of citizenship between economic and social citizenship, claimed by all persons, and political citizenship, which can be exercised through the Party, (2) in an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) in an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) in a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Chinese constitutionalism, understood as state and party constitutionalism can, together, serve as a basis for understanding the way in which rule of law governance is legitimately possible where the disciplinary focus of constitutional duty is focused, not primarily on the state apparatus, but instead centers on the Party apparatus. Rule of law constitutionalism in China, then, is better understood as state-party constitutionalism, with a necessary focus on party rather than state, grounded in separation of powers principles in which the administrative function is vested in the state and political authority over all is vested in the Party under law. But thus constructed, even state-party systems can claim a certain legitimacy as a constitutionalist system - though one whose substantive values are inconsistent with those of secular transnationalist constitutionalist states. This is constitutionalism with Chinese characteristics.Id. The great vehicle of this scientific development of a polity from out of a Party structure is both an institutionalized Party structure and a willingness to move to institutional values. that increasingly are open to individuals willing to support the basis of political organization in the state. Backer, Party as Polity, supra.
"The concept of scientific development is intimately tied to the project of institution building and stability within all aspects of Chinese governance—public and private. “Scientific development and social harmony are integral to each other and neither is possible without the other.” Id. It is also a long term project that involves all aspects of political organization. “Building a harmonious socialist society is a historical mission throughout the cause of socialism with Chinese characteristics, as well as a historical process and the social outcome of correctly handling various social problems on the basis of development.” Id." Larry Catá Backer, A Constitutional Court for China within the Chinese Communist Party: Scientific Development and the Institutional Role of the CCP, C.P.E. Working Paper No. 11-1 (November 28, 2008). I also suggested that, ironically enough, this process of development in some ways parallels that of the United States, where, for example, property and its ideology, rather than party affiliation, served as the basis for political citizenship in the 18th and19th century. Backer, Party as Polity, supra.
As Hu Jinato noted, under the constitutional system, the CCP must:
Improve the mechanism of restraint and oversight and ensure that power entrusted by the people is always exercised in their interests. Power must be exercised in the sunshine to ensure that it is exercised correctly. We must have institutions to govern power, work and personnel, and establish a sound structure of power and a mechanism for its operation in which decision-making, enforcement and oversight powers check each other and function in coordination. We will improve organic laws and rules of procedure to ensure that state organs exercise their powers and perform their functions and responsibilities within their statutory jurisdiction and in accordance with legal procedures. We will improve the open administrative system in various areas and increase transparency in government work, thus enhancing the people's trust in the government. Hu Jintao, Hold High the Great Banner of Socialism with Chinese Characteristics and Strive for New Victories in Building a Moderately Prosperous Society in all Respects, Report to the Seventeenth National Congress of the Communist Party of China on Oct. 15, 2007, at Part VI, 6).I noted that the suggestion is clear, though its implementation may lag, "as a constitutive and vanguard element of Chinese Constitutionalism, the CCP has a vital institutional role to play within the constitutional system. That role is grounded in bureaucratization and institutionalization of rule of law governance." Backer, A Constitutional Court for China, supra.
This movement from Party to polity might also serve as a basis for the political development of Cuba, a development that might lead, eventually to a normal set of relationships with its neighbors, including the United States. The Cuban Constitution (2002) provides "artículo 5o.- El Partido Comunista de Cuba, martiano y marxista-leninista, vanguardia organizada de la nación cubana, es la fuerza dirigente superior de la sociedad y del Estado, que organiza y orienta los esfuerzos comunes hacia los altos fines de la construcción del socialismo y el avance hacia la sociedad comunista." ("The Cuban Communist Party, Marti-ist andMarxist Leninist, organized vanguard of the Cuban nation, is the superior directing force of society and state, which organizes and orients common efforts to the ends of the construction of socialism and the advance to a communist society.") The Party thus assumes a superior political role within the state, above the apparatus of state government. Its political role thus serves as a template for state action.
But that requires a move toward an institutionalization and bureaucratization of the Cuban Communist Party. That, in turn, requires the elaboration of an institutional framework for Party organization in which governance principles, like American constitutional principles, can be developed and applied uniformly to Party, state and cadres. While the Chinese model might not transpose easily to Cuba, the forms of that model might ensure the construction of an institutional framework that would permit the development of a rule based system. A key element of that development in China has been the work of the Party Congresses, especially from the time of the leadership of Deng Xiao Ping. Whatever its flaws from an American perspective, the system has been important in the institutionalization of organizational structures and governance principles that have bureaucratized and diffused power within the Chinese system. The broader and more inclusive the Party Congress, the more likely the possibility of building a more broadly based institutional structure for the exercise of political power among a larger number of people committed to the preservation of that system. And, of course, the broader that participation, within the Party apparatus, the greater the ambit of political participation among the people.
But it has been 12 years since the last Party Congress in Cuba. Recently Raul Castro announced "the postponement of the Cuban Communist Party congress to an unknown date. Fidel Castro, who stepped down from presidency following intestinal surgery in 2006, remains the head of the Communist Party of Cuba." Larry Moonze, Raul Announces Postponment of Cuban Communist Party Congress, The Post, Aug. 6, 2009.
During the 7th Cuban Communist Party Central Committee plenary session in Havana that discussed the national and international situation, President Raul said the current economic situation, defined by the prevailing global economic recession that had hit hard, Cuba and the nation's prospects must be analysed comprehensively with the party members and all the people before the congress could be staged. He said the 6th party congress, which would definitely be the last under the leadership of the historical figures of the revolution, was not just another event."Given the law of life it will most probably be the last headed by the historical leadership of the Revolution,” President Raul, the current second secretary of the party deputising his elder brother, Fidel, said. . . . The Central Committee thereby agreed to postpone the party congress until "this crucial stage of prior preparationî has been completed.Id. Yet one would think that Party discipline could be maintained on the basis of democratic centralism which forms a key part of Cuban Communist Party organization:
El Partido Comunista de Cuba se estructura orgánicamente y desarrolla su vida interna sobre la base de la observación más rigurosa del principio leninista del centralismo democrático que conjuga una disciplina estricta y consciente con la más amplia democracia interna, el ejercicio de la dirección colectiva y de la responsabilidad individual y la práctica de la crítica y la autocrítica ante los propios errores, todo lo cual garantiza la pureza y la cohesión de sus filas y la necesaria unidad de pensamiento y de acción junto a la mayor libertad de discusión y de iniciativas de los comunistas.Estatutos del PCC, at 2 ("The Communist Party of Cuba is organically structured and develops it internal life based on the strict observation of the Leninist principle of democratic centralism, combining strict and conscious discipline with the most extensive internal democracy, the exercise of collective leadership, individual responsibility and the practice of criticism and self-criticism of errors, all of which ensures the purity and cohesion of its ranks and the necessary unity of thought and action together with the greater freedom of discussion and initiatives of the Communists").
It is possible that the leadership is unprepared for the deployment of this exercise of democratic centralism in the lead up to the Party Congress. But postponement could suggest a lack of maturity in the institutions of the Party. It could also suggest a need to pay greater attention to the mechanics for dealing with changes in the leadership. In a state seeking stability at a delicate moment, even the symbolism of a postponement might be regrettable. And indeed, from outside the Island, the postponement reinforces the sense that the current governance framework is fragile. The recent removal of Felipe Perez Roque and Carlos Lage suggests the fundamental nature of that fragility.
Perhaps the most prominent of those ousted, Foreign Minister Felipe Perez Roque, was the youngest of Cuba's top leaders and had been widely mentioned as a possible future president. Perez Roque, 43, was replaced by his own deputy, Bruno Rodriguez. Vice President Carlos Lage, 57, apparently kept his job as vice president of the ruling Council of State, but was replaced as Cabinet Secretary by Gen. Jose Amado Ricardo Guerra, who had been a top official in the military that Raul Castro ran for decades. Lage was credited with helping save Cuba's economy by designing modest economic reforms after the Soviet Union collapsed.Perez Roque was once personal secretary to Fidel Castro and a former leader of the Communist Party youth organization. He had been foreign minister for almost a decade. Carlos Lage and Felipe Perez Roque replaced among other changes in Cuban goverment, Cuba News Headlines, March 22, 2009.Postponement after a shake up of this magnitude might suggest, especially abroad, an inability to control or disciplinary issues extending down to the Party rank and file. Indeed, it appears that Party officials at the highest levels have been very sensitive about the removals.
"An official video that presents the reasons for the ouster of Vice President Carlos Lage and Foreign Minister Felipe Pérez Roque has been shown for the past several weeks to selected groups of Cuba's ruling elite, according to information received by El Nuevo Herald from Havana. . . .The video is shown in two versions: one lasting almost three hours, the other, seven. Both contain compromising images and statements made by Lage and Pérez Roque about retired leader Fidel Castro, current President Raúl Castro and First Vice President José Ramón Machado Ventura, according to those familiar with the footage. Both versions show conversations between Lage and Pérez Roque in which they make jokes about Fidel Castro's infirmities and his years in power, and question Raúl Castro's ability to govern the country." Video shows why two top Cuban officials were ousted,The Miami Herald, May 23, 2009.But it also adds fuel to the increasingly vocal sentiment among opponents of the current government that it is moving not towards Chinese style Marxist Leninist rule of law Party-State, but to a conventional model of military dictatorship with socialist rhetoric, a sort of perverted Peronism.
More importantly, perhaps, lingering dissatisfaction, hinted at by Lage and Perez Roque, might also be found among Party faithful. That dissatisfaction might have exploded into the open at a Party Congress. Party Militants, it seems, have the right to "Demandar en todo momento la aplicación de la política del partido y el cumplimiento de lo establecido en estos estatutos y los reglamentos, así como de los acuerdos del partido." Estatutos del PCC, at art. 8 ("Demand at any time the implementation of the policy of the party and compliance with the CCP rules and regulations, as well as the agreements of the party). Yet, if one cannot trust one's cadres, the bearers of political rights within a Marxist Leninist state, then one runs the risk of moving away from a rules and group based system, however limited the extent of political rights, to one which is seen as increasingly individual rather than group centered. And even if the reasons for the postponement was to sort through the difficulties of the current economic crisis and its effects in Cuba, the postponement itself serves to suggest that the situation is graver within the Island than has been reported. That might make potential economic partners more jittery. The next few months will suggest the way in which the Party leadership in Cuba intends to fashion the Party-State institutional framework for the future. They might do better to reconsider the Stalinist model that the postponement suggests.